Swift v. Green, 20 Ill. 173 (1858)

April 1858 · Illinois Supreme Court

20 Ill. 173

Richard K. Swift et al., Appellants, v. George Green et al., Appellees.

APPEAL FROM COOK.

Where three are sued, and service of process is upon, two, and no appearance for all, judgment cannot go against all.

This case is stated in the opinion of the court.

Scates, McAllister, Jewett & Peabody, for Appellants.

G. W. & J. A. Thompson, for Appellees.

Walker, J.

This was an action of assumpsit, brought by Green, Ware and Rice, against Richard K. Swift, Lyman P. Swift and James S. Johnston, in the Cook Circuit Court, to the special January term, 1858. The summons was returned served on Richard K. Swift and James S. Johnston, and, as to Lyman P. Swift, not found. On the 16th day of January, 1858, a judgment by default was rendered against all the defendants for the sum of two hundred and ninety-one dollars and seventy-five cents. There was no appearance entered by defendant Lyman P. Swift. And to reverse this judgment the defendants below prosecute this appeal, and assign for error that judgment was rendered against Lyman P. Swift when he had not been served with process and had not entered his appearance to the action.

It is clearly erroneous to render judgment against all of several defendants when any one of them is not in court by service or otherwise. The service on a portion of the defendants does not give the court jurisdiction of those not served. O’Conner et al. v. Mullen, 11 Ill. R. 116 ; Davidson et al. v. Bond et al., 12 Ill. R. 84 ; Brockman et al. v. McDonald, 16 Ill. R. 112.

The judgment of the court below is reversed, and the cause remanded.

Judgment reversed.